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Taney, Roger Brooke

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Birth: March 17, 1777, Calvert County, Maryland.

Education: Graduated from Dickinson College, 1795, honorary LL.D.; read law privately.

Official Positions: Member, Maryland House of Delegates, 1799–1800; Maryland state senator, 1816–1821; Maryland attorney general, 1827–1831; U.S. attorney general, 1831–1833; acting secretary of war, 1831; U.S. secretary of the Treasury, 1833–1834 (appointment rejected by Senate).

Supreme Court Service: Nominated chief justice by President Andrew Jackson, December 28, 1835, to replace John Marshall, who had died; confirmed by the Senate, March 15, 1836, by a 29–15 vote; took judicial oath March 28, 1836; served until October 12, 1864; replaced by Salmon P. Chase, nominated by President Abraham Lincoln.

Death: October 12, 1864, Washington, D.C.


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Roger Brooke Taney
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Roger Brooke Taney

Roger Brooke Taney came from a wealthy and well-connected Maryland family that made its fortune in landholding, slaves, and tobacco. At age eighteen Taney graduated from Dickinson College in Pennsylvania, read law with Judge Jeremiah Chase in Annapolis, and began practicing in 1799. Initially a Federalist, Taney served in the state legislature for two years and broke with his party when it failed to support the War of 1812. In 1816 he won a five-year term in the Maryland Senate. At the expiration of his term, Taney moved to Baltimore where his law practice flourished. He also remained politically active and was elected Maryland's attorney general in 1827. Taney became a staunch supporter of Andrew Jackson and in 1828 chaired the Maryland central committee for Jackson's presidential campaign.

In 1831 Jackson appointed Taney U.S. attorney general, and Taney soon became one of Jackson's main advisers, helping shape administration policies on slavery and the rights of blacks, federal-state relations, and the Bank of the United States. Like Jackson, Taney had mixed and often seemingly inconsistent views on these issues.

During the nullification crisis Taney strongly supported Jackson's confrontation with South Carolina. On this issue Taney was a proponent of federal power in the tradition of Chief Justice John Marshall. When confronted with questions of slavery and the rights of free blacks, however, Taney deferred to state authorities and declined to assert any federal power. He argued that neither under the commerce clause nor the treaty power could the national government regulate slavery and race relations in the states.

Taney's deference to states' rights on issues of race and the rights of free blacks anticipated the views he later articulated in his famous—and infamous—opinion in Dred Scott v. Sandford (1857). As attorney general, Taney had to comment on the constitutional power of southern states to prohibit free blacks (from other states or the British Empire) from entering their jurisdiction. In his official “Opinion of the Attorney General,” Taney asserted:

The African race in the United States even when free, are everywhere a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than right.… They are not looked upon as citizens by the contracting parties who formed the Constitution. They were evidently not supposed to be included by the term citizens.

Taney concluded that the Declaration of Independence was never meant to apply to blacks, who were, in the attorney general's mind, not entitled to the natural rights of “life, liberty, and pursuit of happiness.”

This official opinion of Attorney General Taney demonstrates that the antiblack, proslavery views Chief Justice Taney expressed in Dred Scott were neither an aberration nor a function of the changing politics of the 1850s; rather, they were part of his lifelong ideology. This opinion was never published and therefore did not affect public debate, but it certainly bolstered Jackson's hands-off policy toward southern regulations of free blacks from the British Empire and the North.

When examined through the lens of Dred Scott, Taney's views on free blacks become extraordinarily significant. At the time he entered the cabinet, however, the most divisive political issue facing the nation was not the status of blacks, but the Bank of the United States. Taney wholeheartedly supported Jackson's war against the bank, and he helped the president draft the veto message that asserted its unconstitutionality. Jackson's veto was a direct rebuke to Marshall's opinion in McCulloch v. Maryland (1819) that the bank was constitutional. Taney's assistance to Jackson can be seen as the first step in his gradual dismantling of much of Marshall's jurisprudence.

After the bank veto, Jackson ordered two successive secretaries of the Treasury to begin withdrawing federal deposits from the Bank of the United States. When both refused to comply with his order, Jackson fired them and appointed Taney secretary of the Treasury. Taney immediately began removing deposits from the bank, and the following June the bank's supporters in the Senate retaliated by blocking his confirmation. Taney returned to his law practice in Maryland. On January 15, 1835, Jackson nominated Taney for the Supreme Court, to replace Justice Gabriel Duvall, who had retired. The Senate on March 3 once again refused to confirm Taney to office by postponing any action on it.

When Chief Justice Marshall died in July 1835, Jackson nominated Taney to succeed him. By the following spring, Jacksonians controlled the Senate, and on March 16, 1836, the Senate confirmed both Taney and Philip P. Barbour, who took Duvall's seat. Although appointed for his political loyalty, Taney also served another purpose. He was the Court's first Catholic, and his appointment helped solidify Catholic (especially Irish) support for the Democratic Party at a time when large numbers of Catholics were immigrating to the United States.

Taney's confirmation distressed the Whigs, who believed the new chief justice, along with Jackson's other appointments, would destroy the judicial and economic nationalism Marshall had created. By the time Taney became chief justice, Jackson had already placed John McLean, Henry Baldwin, and James Wayne on the Court. With the confirmation of Taney and Barbour, Jackson had a majority of justices. The additions of John Catron and John McKinley in 1837 created a Court with seven Jacksonian Democrats. If Taney wanted to, he apparently had the votes to dismantle Marshall's legacy.

Indeed, for all but the last two years of his tenure, Chief Justice Taney could count on a Democratic, states' rights, proslavery majority. From 1837 until 1862, only four Whigs served on the Court. Smith Thompson remained on the bench until 1843, and Joseph Story, Taney's only rival for intellectual leadership of the Court, until 1845. By the mid-1840s, McLean had abandoned Jacksonian principles and was on a political trajectory that took him to the Whig, Free Soil, and Republican parties. From 1851 to 1857 the Court included Benjamin Curtis, a conservative Whig from Massachusetts. President Abraham Lincoln nominated three Republicans to the bench in 1862, and a fourth in 1863, so that in his last two terms Taney no longer controlled the Court or its jurisprudence.

From 1837 to 1862 the Democratic-Jacksonian majority crafted opinions that were generally supportive of states' rights and slavery and skeptical of national power. In the areas of contract and commerce, Taney led a partial retreat from Marshall's nationalist jurisprudence, but in others, such as procedure, the Taney Court expanded on Marshall's foundation. On slavery, the Taney Court was never jurisprudentially consistent. Until 1861 Taney rejected states' rights when asserted by northerners opposed to slavery, while supporting southern assertions of power over slavery. Where federal power would protect slavery, Taney was a nationalist; but where the government in Washington might threaten southern bondage, Taney supported a limitation of federal power. The unifying theme of Taney's jurisprudence on slavery, then, was protection of slavery. Indeed, he remained proslavery throughout his public career, despite having freed his own slaves in the 1810s and 1820s.

The Taney Court's slavery jurisprudence should not be surprising. In addition to the heavy presence of Democrats, until the Civil War the Taney Court always had a proslavery majority. From his appointment as chief justice to the outbreak of the war, the Court always had four northerners and four southerners plus Taney. The southern majority was enhanced by the fact that throughout this period at least two and sometimes three of the northerners were Democratic “doughfaces”—northerners with southern principles. Only McLean was openly antislavery, and his opposition to the “peculiar institution” was relatively mild. In Peter V. Daniel and John A. Campbell, the Court had two uncompromisingly proslavery justices, as well other slave-owning southerners whose jurisprudence reflected their sectional and economic interests. By the last antebellum decade, the Supreme Court had become, in the words of historian David Potter, “the very citadel of American slavery.”

Initial Whig fears about Taney eventually proved to be overblown. He was not a radical, but his jurisprudence, especially on economic issues, was clearly different from Marshall's. Marshall generally favored sweeping federal powers over commerce and a strict interpretation of the limitations on the states in areas such as contract and currency. Taney's approach was far more flexible.

Charles River Bridge v. Warren Bridge (1837), decided during Taney's first term, set the tone for his economic jurisprudence. In 1785 the Charles River Bridge Company had obtained a state charter to operate a toll bridge between Boston and Cambridge. With no other bridge across the Charles River, the company had been enormously profitable, and by the 1830s the bridge was worth a half-million dollars. But the single bridge was also no longer adequate for the needs of Boston and its suburbs. In 1828 the Massachusetts legislature chartered the Warren Bridge Company to build a second bridge across the river. Under its charter, the Warren Company could collect tolls to earn back the cost of building the bridge and a reasonable profit, but after that, the bridge would belong to the state. The Charles River Bridge Company argued that its charter implied it had a monopoly, and by granting a charter to the Warren Company, the state effectively violated the contract clause of the Constitution. Speaking for the Court, Taney concluded that “any ambiguity in the terms of the contract, must operate against the adventurers [stockholders] and in favor of the public.”

Although Whigs disliked the result (Daniel Webster was the losing attorney, and Justice Story dissented), Taney's decision was not a radical departure from Marshall's economic jurisprudence. Taney simply recognized that the public good required a balance between private interests (the corporation) and the public need, as reflected by the legislature. The Taney Court followed the spirit of Charles River Bridge in subsequent cases—allowing states great flexibility in issuing corporate charters, but always reading those charters narrowly in order to protect the public good and the states. Thus the Taney Court had no difficulty in recognizing the right of the state to give companies tax breaks or the power of eminent domain, but in West River Bridge v. Dix (1848), the Court also upheld the right of the state to use eminent domain to take property from a corporation.

Taney's decision in Charles River Bridge and subsequent cases also reflected his states' rights proclivities. The Charles River Bridge opinion deferred to the needs of the states to promote economic development and to control local industries. In New York v. Miln (1837), the Court (in an opinion by Justice Barbour) upheld New York City's law requiring ships entering the port to provide detailed information about immigrant passengers. As with the contract clause, the Taney Court reshaped Marshall's nationalist commerce clause jurisprudence to give states more latitude in regulating their economies.

The Taney Court also expanded the power of states in Briscoe v. Bank of the Commonwealth of Kentucky (1837), which upheld the power of a state-chartered bank to issue bank notes. This decision narrowed the implications of Marshall's opinion in Craig v. Missouri (1830), which had prohibited states from issuing paper money. Logically, if the Constitution prohibited a state from issuing currency, then surely a state could not charter a bank to do what the state itself could not do. McLean's opinion for the Court distinguished between a bank issuing notes and a state issuing currency. Carrying on Marshall's nationalist traditions, Story dissented.

The outcome of Briscoe dovetailed with Taney's role in dismantling the Bank of the United States three years earlier. In the 1830s the U.S. government did not print currency, but only minted a small amount of gold and silver coins, while the Bank of the United States issued bank notes that functioned as a national currency. But with the expiration of the bank's federal charter in 1836, the United States had no national currency. Had the Taney Court ruled differently in Briscoe, there would have been no currency in the United States, which might have forced the national government to once again charter a national bank.

Charles River Bridge, Miln, and Briscoe presaged other cases in which Taney and his colleagues supported state regulation and experimentation in commercial and economic areas. For example, in the License Cases (1847), the Taney Court upheld the right of Massachusetts, Rhode Island, and Connecticut to ban the importation of liquor. In the Passenger Cases (1849), the Court struck down, on commerce clause grounds, state laws taxing immigrants, but Taney, ready to defer to the states, dissented. In Cooley v. Board of Wardens of Port of Philadelphia (1852), the Court upheld a Pennsylvania law requiring that ships entering Philadelphia take on a local pilot. This decision also reflected Taney's general deference to the states, although Curtis wrote the opinion of the Court.

Despite his general sympathy for the states in economic regulation, Taney did not always limit federal power. Two cases dealing with corporations and interstate commerce suggest his flexibility on economic matters. On circuit, in Warren Manufacturing Co. v. Aetna Insurance Co. (1837), Taney upheld a Maryland law allowing a Connecticut company doing business in Maryland to be sued in Maryland. Furthermore, Taney held that a judgment against the company in the state court could then be enforced in a federal court. Although a victory for state power, this case also helped establish an atmosphere conducive to corporations doing business on a national scale. Under Warren Manufacturing, states would have some control over out-of-state companies and could count on the federal courts to help them enforce that control. This decision made it more likely that states would allow out-of-state companies to do business in their jurisdictions. Two years later, in Bank of Augusta v. Earle (1839), Taney further enhanced interstate business while at the same time recognizing the power of the states to regulate their economies. In this case, Taney held that a bank chartered in one state might do business in another unless specifically prohibited from doing so. This ruling did not destroy state power, but it left the states in the position of having to specifically ban out-of-state corporations from doing business in their jurisdictions.

In some commercial cases, Taney actually expanded on Marshall's judicial nationalism. In Swift v. Tyson (1842), Story, writing for a unanimous Court, held that the federal courts were free to develop their own common law for commercial litigation. This case allowed those engaged in interstate business to rely on general rules of commercial law and consequently limited the power of the states to create unique rules that might burden out-of-state litigants. And in Propeller Genesee Chief v. Fitzhugh (1852), Taney reversed the Marshall Court's earlier doctrine enunciated in The Thomas Jefferson (1825) to actually expand federal jurisdiction. In the 1825 case, Story, writing for the Court, had allowed the states to regulate traffic on inland waters. By 1852 this practice had developed into an impossible set of different and sometimes contradictory rules in the nation's water commerce. Taney concluded that federal admiralty jurisdiction extended to all navigable rivers and lakes, not just to those affected by “the ebb and flow of the tide.” As law and history professor R. Kent Newmyer concluded: “In an explicitly pragmatic response to commercial necessity, Taney reversed Story's earlier ruling, declaring it mistaken law and bad policy, and extended the admiralty jurisdiction of federal courts over the whole system of inland waterways. Marshall, who never liked the Jefferson decision, would surely have congratulated his successor.” These decisions, which enhanced federal power, were imperative for the emerging national economy and did not significantly hamper the ability of the states to control their own economic affairs.

The antebellum Court rarely faced questions about politics and fundamental rights in the states. Three cases, Permoli v. First Municipality of New Orleans (1845), Ex parte Dorr (1845), and Luther v. Borden (1849), illustrate the way the Court under Taney's leadership avoided such questions. Permoli reaffirmed Marshall's holding in Barron v. Baltimore (1833) that the federal Bill of Rights did not apply to the states. Permoli questioned the right of the city of New Orleans to prohibit burial masses in certain Catholic churches in the city. Bernard Permoli was a Catholic priest who held a mass in his church in violation of a city ordinance. Catron, for a unanimous Court, dismissed the case for lack of a federal question on the ground that the Bill of Rights did not apply to the new states any more than it did to the old.

Ex parte Dorr and Luther v. Borden arose from the Dorr War, an extralegal attempt to bring about political reform in Rhode Island. In 1841 Rhode Island was still operating under its colonial charter, which prevented a substantial majority of the adult males from voting. In addition, malapportionment of the state legislature allowed a small minority of rural farmers to control the government and stifle all reform. Led by Thomas Dorr, reformers wrote a new constitution, elected a new government, and for a time Rhode Island had two competing governments. Dorr was forced to flee the state when the governor under the old charter called out the militia. Dorr was eventually arrested, convicted of insurrection, and sentenced to life in prison. In Ex parte Dorr, the Court overruled a petition for habeas corpus on the grounds that the federal government could not interfere in state criminal proceedings. A year later, the new governor of Rhode Island, who had gained office under a democratic constitution written by the Dorrites, pardoned Dorr.

In Luther v. Borden, Martin Luther, a Dorrite, sued Luther Borden, a state militiaman, for trespass for searching his home and arresting him during the uprising. Luther argued that Rhode Island had not had a republican form of government and that under Article IV, Section 4, of the Constitution, the Supreme Court had jurisdiction. Taney, writing for the Court, rejected Luther's arguments, concluding that the legitimacy of the old charter government was a “political question to be settled by the political power” of the people within the state.

In these cases, Taney declined to assert federal power over questions of politics and rights in the states. This stance was consistent with his beliefs about states' rights and limitations on the national government, but the subtext to these decisions, and to most of the Taney Court's decisions on interstate commerce, was slavery.

In their study of antebellum constitutionalism, Equal Justice Under Law, Harold M. Hyman and William M. Wiecek refer to slavery as the “Nemesis of the Constitution.” The characterization is apt, and, in terms of his historical reputation, no one suffered more from this nemesis than Taney. Had he died or left the bench in 1850, or even 1856, before his opinion in Dred Scott, he would be remembered as a great chief justice, well-liked by his colleagues and admired by the citizenry. But in his last fourteen years on the Court, Taney faced cases on slavery and the Civil War that left his reputation in tatters.

As an adult Taney personally divorced himself from slavery. That he did so is to his credit and distinguished him from southern presidents from George Washington to Andrew Johnson—none of whom freed their slaves in their lifetime. But Taney never divorced himself from his southern roots, his ideological support of slavery as an institution, or his beliefs in the racial inferiority of blacks. Throughout his career, Taney's jurisprudence was overwhelmingly proslavery and antiblack.

As chief justice, Taney's first major encounter with slavery came in 1841 in two cases, United States v. The Amistad, and Groves v. Slaughter. Amistad was the first great slavery-related cause célèbre to reach the Court. The Amistad was a Spanish schooner filled with African slaves, who had been illegally imported to Cuba. While being transported from one part of Cuba to another, the slaves revolted, killing some of the crew and demanding that they be taken back to Africa. The remaining crew members sailed east during the day, but at night reversed course, heading north and west, in hopes of reaching a U.S. southern state. The craft was eventually boarded by the U.S. Coast Guard in Long Island Sound. Various suits arose over the status of the vessel and the slaves on it. Ultimately, the Supreme Court ruled that the blacks had been illegally taken from Africa, could not be held as slaves under Spanish or American law, and were to be returned to Africa. Story wrote for the Court, with Taney remaining silent. By 1841 even many proslavery advocates found the African trade to be immoral and a violation of natural law and most public law (but not international law). Taney's acquiescence in freeing the Amistad's slaves cannot be seen as antislavery.

On its face, Groves v. Slaughter (1841) also did not raise pro- or antislavery issues. Rather, it was essentially a commerce clause case—the only major slavery case to come before the Court that directly raised commerce clause issues. Mississippi's 1832 constitution prohibited the importation of slaves for sale. This was not an antislavery provision, but an attempt to reduce the flow of capital out of the state. Robert Slaughter, a professional slave dealer, had sold slaves in Mississippi and received notes signed by Moses Groves and others. Groves and his codefendants later defaulted on the notes, arguing that the sales of slaves in Mississippi were void. The suit was between slave sellers and slave buyers.

Speaking for the Court, Thompson held that the notes were not void because Mississippi's constitutional clause was not self-executing; absent legislation implementing the prohibition, the clause was inoperative. This result was reasonable based on commercial rules and consistent with the outcome in Bank of Augusta v. Earle (1839). In that case, Joseph B. Earle and other Alabamians had refused to honor bills of exchange they had issued on the grounds that they had been bought by an out-of-state bank, and out-of-state banks could not operate in Alabama. Taney had ruled that out-of-state banks could operate in any state in the absence of an explicit act of the legislature to the contrary. Similarly, in Groves, the Court held that the Mississippi purchasers could not hide behind a clause of the state constitution and refuse to pay the notes they had signed without an explicit statute in Mississippi banning slave sales. This result was “neutral” with regard to slavery.

Indicative of what would be his highly partisan approach to slavery throughout the rest of his career, Taney wrote a separate concurrence, insisting that the federal government had no power over slavery. This issue was not directly before the Court, but Taney did not want to leave any implication that Congress could regulate slavery under the commerce clause. He declared:

The power of this subject [slavery] is exclusively with the several States, and each of them has a right to decide for itself whether it will or will not allow persons of this description to be brought within its limits from another State, either for sale or for any other purpose …. and the action of the several States upon this subject cannot be controlled by Congress, either by virtue of its power to regulate commerce, or by virtue of any other power conferred by the Constitution of the United States.

On the other side of the question, McLean asserted in a concurrence that the free states could prevent the importation of slaves if they wished and that Congress could not interfere. Sounding much like Taney, McLean declared that “the power over slavery belongs to the States respectively. It is local in its character, and in its effects,” and “each state has a right to protect itself against the avarice and intrusion of the slave dealer; to guard its citizens against the inconveniences and dangers of a slave population.” He argued, “The right to exercise this power by a State is higher and deeper than the Constitution.” In essence, both Taney and McLean agreed that a state might legally ban the importation of slaves. This principle supported northerners interested in keeping slaves out of their states and the southern desire to make sure that the federal courts could not interfere with slavery on the local level.

In 1841, then, supporters and opponents of slavery on the Court were anxious to see the issue remain solely in the hands of the states. By 1842, however, Taney would no longer be content with that interpretation of slavery, unless it was a slave state making the determination.

In 1842 the Supreme Court heard Prigg v. Pennsylvania, its first case involving the fugitive slave clause of the Constitution. Prigg involved the constitutionality of a Pennsylvania personal liberty law requiring that slave catchers receive a proper writ from a state judge before removing any blacks from the state. Edward Prigg had seized a woman and her children without any state process and was subsequently convicted of kidnapping in Pennsylvania. In a sweeping victory for slavery, which shook to the core his antislavery reputation, Story struck down the Pennsylvania law, upheld the federal fugitive slave law of 1793, and further declared that slave owners had a constitutional right to seize their slaves anywhere they found them, without resort to any sort of legal process, as long as the seizure could be done without a breach of the peace. In reaching these conclusions, Story swept aside the facts of the case, which showed that at least one of the people Prigg seized had been born in Pennsylvania and was therefore free under that state's laws.

In his opinion, Story asserted that the federal government could not require state officials to enforce the federal fugitive slave law of 1793, although he urged them to do so as a matter of patriotism, moral obligation, and (unenforceable) constitutional duty. This holding was consistent with prevailing notions of federalism and states' rights, and Taney should have applauded it. Indeed, later in his career, in Kentucky v. Dennison (1861), Taney argued that the federal courts could not order state governors to enforce the criminal extradition clauses of the same 1793 law. But Taney did not endorse this view in Prigg. In a partial concurrence, Taney argued that state officials ought to be required to enforce the fugitive slave clause. This opinion was the beginning of Taney's assertion of Marshall-like federalism to protect slavery.

In Strader v. Graham (1850), Taney once again spoke out on slavery. Jacob Strader was the owner of a steamboat that had transported Christopher Graham's three slaves to Ohio, where they disappeared. Under Kentucky law, a steamboat operator was liable for the value of any slaves who escaped by boarding the boat without written permission of the owner. Strader, however, argued that the blacks, who were musicians, were free because Graham had previously allowed them to go to Indiana and Ohio to perform. Speaking for a unanimous Court, Taney ruled against Strader, arguing that the status of the blacks could be decided only by Kentucky, which had ruled they were slaves. Kentucky was free to ignore the laws of Ohio and Indiana on this question. Taney declared that “every State has an undoubted right to determine the status or domestic condition of the persons domiciled within its territory” except as “restrained” by the Constitution. This wording certainly applied to fugitive slaves, whom the northern states could not declare free, but it also held open the possibility that slave owners had other federal rights to carry their slaves into the North or the federal territories. Part of this implication became explicit in Dred Scott.

Dred Scott was the slave of Dr. John Emerson, a military physician who had taken him to Fort Snelling, in present-day Minnesota. At the time, this part of the Louisiana Purchase was free territory under the Missouri Compromise. After Emerson's death, Scott sued for his freedom on the grounds that he had become free in Minnesota, and once free, always free. After nearly eleven years of litigation in state and federal courts, the Court decided the case in 1857. Although every one of the justices wrote an opinion, Taney's was the opinion of the Court. In his sweeping fifty-five-page opinion, Taney sought to settle the divisive political questions of slavery and race in favor of the South.

Three aspects of Taney's opinion made it infamous. First, in a tortured interpretation of the Constitution's clause on territorial jurisdiction in Article IV, Taney ruled the Missouri Compromise unconstitutional. On a totally unpersuasive textual analysis, Taney struck down a major piece of congressional legislation that had been the keystone of sectional compromise for more than a generation.

Second, Taney ruled that under the Fifth Amendment's due process clause slaves could not be freed by federal law. In essence, Taney held that the slave was a protected species of property and that under the Constitution Congress could not deprive any citizen of this kind of property. This interpretation of the Constitution pleased the South and angered the North, but it also flew in the face of national law predating the Constitution, in which Congress had banned slavery from some federal territories. Moreover, the use of the Fifth Amendment seemed, to many northerners at least, cynical and ironic. It was that amendment, after all, that asserted that no person could be denied life, liberty, or property without due process of law. Taney stressed the “property” in slaves, and protected it, but ignored the obvious possibility that the amendment might ban slavery in all federal jurisdictions because slavery denied people liberty without due process.

Even more egregious than these two assertions was Taney's claim that blacks—even if free and allowed to vote in the states where they lived—could never be citizens of the United States and have standing to sue in federal courts. In a thoroughly inaccurate history of the founding period, Taney argued that at the adoption of the Constitution, blacks were not

included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which the instrument provides and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and Government might chose to grant them.

Taney concluded blacks were “so far inferior, that they had not rights which the white man was bound to respect.”

If the chief justice hoped to end all controversy over slavery in the territories with this opinion, he seriously miscalculated. Northern anger over the opinion fueled the Republican Party and helped put Lincoln in the White House. Rather than acknowledge the complexity of slavery, Taney simply tried to sweep away the opposition to the institution, and he failed miserably.

Two decisions following Dred Scott showed the proslavery cynicism of Taney's jurisprudence. In Ableman v. Booth (1859), Taney rejected Wisconsin's attempts to remove from federal custody the abolitionist Sherman Booth, who had helped a fugitive slave escape. Taney refused to even consider the constitutionality of the new Fugitive Slave Law of 1850, even though it was substantially different from the law upheld in Prigg in 1842. Taney dismissed Wisconsin's states' rights arguments as though he had never heard of the idea and in his Ableman opinion endorsed a sweeping federal power to support slavery.

In Kentucky v. Dennison (1861), Taney changed his tune once again. The case was an attempt by the state of Kentucky to force Gov. William Dennison, R-Ohio, to extradite a free black named Willis Lago who had helped a slave woman escape from Kentucky. The obvious proslavery result would have been to side with Kentucky, which was consistent with Taney's opinions in Prigg, Dred Scott, and Ableman, all rejections of states' rights in favor of federal protections of slavery. But by March 1861, when the case was decided, seven slave states had already left the Union. Sympathetic to the southern cause, Taney avoided writing an opinion that would have given the federal government the power to force state governors to act. In an opinion reminiscent of Marshall's tactics in Marbury v. Madison, Taney castigated Dennison but refused to order him to act.

Taney remained on the Court until his death in 1864. During his last few years as chief justice he did everything in his power to thwart Lincoln's policies. In Ex parte Merryman (1861), Taney denounced the president for the military arrest of a Maryland man who was organizing Confederate troops, destroying bridges, and in other ways making war against the United States. Lincoln ignored Taney's fulminations and kept Merryman in Fort McHenry. Failing to recognize the nature of the Civil War, Taney dissented in the Prize Cases (1863) and opposed the taxation of judges' salaries to help pay for the war. He secretly drafted an opinion declaring conscription unconstitutional, but no case ever reached the Court in which he could use it.

At the time of his death, Taney was a minority justice, ignored by the president and Congress, held in contempt by the vast majority of his countrymen, and respected only in those places that proclaimed themselves no longer in the Union. Taney's obvious tilt toward the Confederacy showed that he had traveled far from the days when he had advised Andrew Jackson on how to suppress nullificationists. Indeed, he had become one himself in all but name.

Taney's reputation as a judge is mixed. When he died, few had anything good to say about him. Congress refused to appropriate money to put his bust in the Supreme Court chambers. Yet it is clear that his impact on the law was great. For the first twenty years of his tenure, he successfully guided the Court and helped develop important constitutional doctrines. Nevertheless, he is most remembered for Dred Scott, the most infamous decision in American constitutional history. Dred Scott, however, should be seen as only one in a series of decisions designed to strengthen slavery, protect the South, and, in the end, to undermine the cause of the Union after 1861. Taney was creative in finding legal solutions to questions about banking, commerce, and transportation, but he ultimately failed in creating a jurisprudence that could defend fundamental liberty and human rights. That failure will always overshadow his successes.

Bibliography

The best biography of Taney remains Carl B. Swisher's classic Roger B. Taney (1935); but see also Frank Otto Gatell, “Roger B. Taney,” in Friedman and Israel, Justices, vol. 2, 635, which provides a good short biographical sketch of Taney and discusses some of his opinions. For two opposing views of Taney, see James B. O'Hara, “Out of the Shadow: Roger Brooke Taney as Chief Justice,” Journal of Supreme Court History (1998): 21; and Paul Finkelman, “‘Hooted Down the Page of History’: Reconsidering the Greatness of Chief Justice Taney,” Journal of Supreme Court History (1994): 83.

Harold M. Hyman and William M. Wiecek's Equal Justice Under Law (1982) is the best book available on the constitutional history of antebellum America. For the Court under Taney, see the comprehensive and classic, Carl B. Swisher, The Taney Period (1974), volume 5 of the Holmes Devise History. R. Kent Newmyer, The Supreme Court Under Marshall and Taney (1974), provides a good short history of the Court during Taney's service.

David Potter, The Impending Crisis, 1848–1861 (1976) is a history of the years leading up to the Civil War, which puts many of Taney's opinions on slavery into historical context. On slavery and the legal system, see Paul Finkelman, An Imperfect Union: Slavery, Comity, and Federalism (1981), a study of the interstate movement of slaves, which includes detailed analyses of many Taney opinions, and Finkelman, Slavery in the Courtroom (1985). On the most infamous of Taney's opinions, see the prizewinning study by Don Fehrenbacher, The Dred Scott Case: Its Significance in Law and Politics (1978).

Noteworthy Opinions

Briscoe v. Bank of the Commonwealth of Kentucky, 33 U.S. 118 (1837)

Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837)

Warren Manufacturing Co. v. Aetna Insurance Co., 29 Fed. Cases 294 (C.C.D. Conn. 1837)

Groves v. Slaughter, 40 U.S. 449 (1841) (Concurrence)

Prigg v. Pennsylvania, 41 U.S. 539 (1842) (Concurrence)

Luther v. Borden, 48 U.S. 1 (1846)

Strader v. Graham, 51 U.S. 82 (1850)

Propeller Genesee Chief v. Fitzhugh, 53 U.S. 443 (1852)

Dred Scott v. Sandford, 60 U.S. 393 (1857)

Ableman v. Booth, 62 U.S. 506 (1859)

Kentucky v. Dennison, 65 U.S. 66 (1861)

Prize Cases, 67 U.S. 635 (1863) (Dissent)

 

Document Citation
Taney, Roger Brooke, in Biographical Encyclopedia of the Supreme Court 532 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18170-979580.
Document ID: bioenc-427-18170-979580
Document URL: http://library.cqpress.com/scc/bioenc-427-18170-979580